Sh. Purshottam Das, Mathura V. ITO, Mathura

CO 23/AGR/2009

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 5552 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 5 month(s) 8 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-01-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-01-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 10-08-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VINODH KUMAR
• Assessee Lawyers: P K SEHGAL
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.208/AGR/2009 ASSTT. YEAR : 2002-03 INCOME TAX OFFICER 3(3), VS. SHRI PURSHOTTAM DAS , MATHURA. S/O. SHRI LAXMAN PRASAD, VILLAGE BIRJAPUR, P.O. ARUKI, DISTT. MATHURA. (PAN : AAXPD 1257 D) C.O. NO.23/AGR/2009 (IN ITA NO.208/AGR/2009) ASSTT. YEAR : 2002-03 SHRI PURSHOTTAM DAS, VS. INCOME TAX OFFICER 3(3 ), S/O. SHRI LAXMAN PRASAD, MATHURA. VILLAGE BIRJAPUR, P.O. ARUKI, DISTT. MATHURA. (PAN : AAXPD 1257 D) (APPELLANTS) (RESPONDENTS) REVENUE BY : SHRI VINODH KUMAR, JR. D.R. ASSESSEE BY : SHRI P.K. SEHGAL, ADVOCATE ORDER PER P.K. BANSAL, A.M.: THIS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE HAVE BEEN FILED AGAINST THE ORDER OF THE CIT(A) DATED 17.02.2009. 2. IN THE APPEAL FILED BY THE REVENUE, THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS :- 2 1) THAT THE CIT (APPEALS)-L, AGRA HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY U/S. 271(1)(C) OF I.T. ACT,1961 IMPOSED IN RESPECT OF ADDITIONS MADE TO THE INCOME OF THE ASSESSEE, BY HOLDING THE SAID PENALTY AS INFRUCTUOUS BECAUSE THE QUANTUM ASSESSMENT ORDER PA SSED U/S 144 OF I.T. ACT, 1961 HAS BEEN SET ASIDE BY THE HONBLE ITAT, A GRA VIDE ORDER DATED 31-7-2008 IN ITA NO.03/AGR./2007. LD. CIT(A) HAS M ISREAD THE ORDER DATED 31-7-2008 OF HON'BLE ITAT BECAUSE THE HON'BLE ITAT HAS NOT ENTIRELY SET-ASIDE THE ASSESSMENT ORDER TO BE MADE DE-NOVO RATHER IT HAS RESTORED IT TO THE FILE OF THE A.O. FOR FRESH ADJUD ICATION ON ALL OR ANY OF THE GROUNDS ASSUMED BY THE ASSESSEE BEFORE LD. CIT(A) ; (B) IN DOING SO THE CIT (APPEALS)-I, AGRA HAS ERRE D IN LAW AND ON FACTS BY HOLDING THE PENALTY U/S. 271(1)(C ) AS INFRUCTUOUS ON WRONG FACTS AND NOT DECIDING THE APPEAL ON MERITS; I 2. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANYONE OR MORE GROUND(S) OF APPEAL DURING THE APPELLATE PR OCEEDINGS. 3. THAT THE ORDER OF THE CIT (APPEALS)-I, AGRA BEIN G ERRONEOUS IN LAW AND ON FACTS BE SET ASIDE AND THAT THE ORDER OF THE ASSESS ING OFFICER BE RESTORED. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME. WE NOTED THAT THE CIT(A) WHILE DISPOSING OF THE APPEAL OF THE ASS ESSEE AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE IN COME-TAX ACT, 1961 (THE ACT HEREINAFTER) VIDE ITS ORDER DATED 17.02.2009 HAS CATEGORICALLY R EFERRED TO THE ORDER OF THIS TRIBUNAL DATED 31.07.2008 IN ITA NO.03/AGR/2007 IN WHICH THIS TRIB UNAL HAS SET ASIDE THE ORDER UNDER SECTION 144 OF THE ACT BY OBSERVING AS UNDER :- '4. IN THE CIRCUMSTANCES, THEREFORE, WE ONLY CONSI DER IT FIT THAT THE MATTER BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER AND IT SHALL BE OPEN TO THE ASSESSEE TO PLEAD ALL OR ANY OF THE GROUNDS ASSUMED BY IT BEFORE THE LD. CIT(A), BEING AGGRIEVED ON THAT SCORE, BEFORE HIM, AND WHO SHALL ADJUDICATE AFRESH AFTER ALLOWING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE (AND WHICH MAY ALSO INCLUDE FURNISHING OF ANY MATERIAL IT WISHES TO PLA CE RELIANCE ON), WHO HAS UNDERTAKEN TO EXTEND FULL COOPERATION IN THE SAID P ROCEEDINGS, PER A SPEAKING ORDER, IN ACCORDANCE WITH LAW. ' 3 4. IN VIEW OF THE AFORESAID FINDING OF THIS TRIBUNA L, THE ORDER PASSED UNDER SECTION 144 OF THE ACT WAS SET ASIDE AND, THEREFORE, IN OUR OPINIO N, THE CIT(A) HAS RIGHTLY DELETED THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT AS THE I MPUGNED ORDER IN RESPECT OF THE PENALTY UNDER SECTION 271(1)(C) HAS BECOME INFRUCTUOUS AND DID NO T SURVIVE AS THE ORDER PASSED UNDER SECTION 144 GOT SET ASIDE. THEREFORE, WE DO NOT FIND ANY I LLEGALITY OR INFIRMITY IN THE ORDER OF THE CIT(A). ACCORDINGLY, WE CONFIRM THE ORDER OF THE CIT(A). I N THE RESULT, APPEAL OF THE REVENUE STANDS DISMISSED. 5. THE CROSS OBJECTION FILED BY THE ASSESSEE, AT TH E TIME OF HEARING, WAS NOT PRESSED BY THE LD. A.R. THEREFORE, THE SAME STANDS DISMISSED AS N OT PRESSED. 6. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION FILED BY THE ASSESSEE STAND DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 19.01.2011) SD/- SD/- (H.S. SIDHU) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 19 TH JANUARY, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY